Notebook LM crates a Video summary of naavi’s articles in a 6 minute video
Naavi
Whether you agree or not with the views of Naavi expressed in the earlier articles ending with the “Summary of the Comments on the petitions filed at Supreme Court on DPDPA”
Considering that only 70 persons have taken the trouble to sign the online petition “I am the Real Public in India and I donot support scrapping of DPDPA and DPDPA Rules” raised by Naavi, FDPPI has now opened a larger public consultation through today’s open session moderated by Naavi. We expect some legal practitioners and academicians to contribute their thoughts to this challenge before us to either agree or disagree with the petition to “Scrap DPDPA”.
We hope the meeting room will overflow and hence join well in time not to miss the opportunity.
Naavi
The entire set of articles that we have discussed in the last fortnight on the DPDPA Challenge petitions in the Suprmene Court are available here.
Copies of the petitions
Venkatesh Nayak
Reporter’s Collective
These discussions cover the two petitions of Venkatesh Nayak and Reporters Collective Trust. We did not have a copy of the third petition filed by NCPI. The points raised in that petition may not be different and if we get the copy of the petition, we will study that also and present the details.
The objective of these articles is not to criticise learned cousels who are representing the case though we may be using some aggressive statements as part of the presentation.
We however make a specific request to the Supreme Court that in all PIL petitions of this nature an opportunity should be given to the general public to submit their views like what the Supreme Court recently did in the case of Digital Arrest related petitions where an Amicus was appointed to collect the information from the public. This should be a standard practice.
We are specially irked by the fact that instead of restricting the prayers to resolve specific concerns the petitioners were asking for “Stay” and “Scrapping of the Act”. This was unwarranted and lacked responsibility.
India has been waiting for a legislation of this type for a long time and when finally it was in place, trying to scuttle it was not considered a good idea. Hence we had to strongly intervene and put across our views.
We now have placed these views in the public and feel that the Court is obliged to consider this opinion besides what the Government may present. Court should atleast ask the Attorney General whether they have gone through these views.
We have directly kept the Ministry of Information Technology informed about these views and hence it is their responsiblity to bring them to the attention of the Court. In the past (eg: Section 66A case) MeitY did not present their case properly and let the section be scrapped. It should not happen this time.
There is no reason to make any changes including in Section 44(3). We have given some suggestions on how the concerns can be addressed and are ready to share more details of how the Data Fiduciaries need to address these issues.
The MeitY, the Attroney General and the Supreme Court should have an open mind to receive these suggestions and not stand on formalities.
Naavi and FDPPI will continue to take actions required to protect DPDPA and will present more analysis as and when required.
On March 7, FDPPI will conduct a virtual Round Table on the topic, All are welcome. The link to the session is Link to the virtual session is available below
Meeting Id: Zoom: 857 9546 4234
Passcode:dpdpa1
One more objection raised by Reporter’s Collective which is bizarre and sinister is the interpretation that while the Search Committee may recommend some candidates either for the Chairman’s position or the members of Data Protection Board, The Government may appoint some body other than the recommended persons.
It is not clear where from they got this creative idea which is unsubstantiated and completely ridiculous.
The petition goes further and states that sincethe DPB may act through a “Digital office” it is “exclusionary” forgetting that the law is meant only for “Digital Personal Data” and the related disputes and further that the disputes with Data Principals if any for personal remedy may be handled not by DPB but by the Adjudicating officer of ITA 2000. When the suject matter of the dispute itself is “Digital”, it is difficult to understand how the dispute can be settled without touching a “Digital Office”. The petitioner has just invented a reason to raise the dispute.
To support its view it has referred to several judicial decisions which have no relation to the formation of DPB through a process involving selection by a search committee consisting of three secreatries and two exernal persons.
Finally the petitioner thinks that the penalty of Rs 50 crores to Rs 250 crores are exaggerated forgetting that the recommendation is “Upto” Rs 50 crores or “Upto” Rs 250 crores. The law does not mandate specifically that the minimum penalty should be Rs 50 crores. The law also provides an option for Volunatary undertaking which could mean that in some instances, no finacial penalty may be impsoed at all and only certain remedial directions may be issued.
Petitioners also need to reflect that under GDPR penalties are at levels of 1 billion US dollars in some cases and comparitively the maximum penalties under the DPDPA are much lower.
The petitioners assume that though the Act provides that Government may exempt specific classes of fiduciaries or specific classes of data from parts of the act, and such selective exemptions may be for SMEs, or even for Religious institutions such as Temples or even for the Journalists, the Government is not empowered to grant such powers. This sort of statements are malicious and meant only to make the Court believe what is not true.
The petitioners need to be asked to justify some of these assetions or admit that they are committing “perjery”.
Thus on several grounds the petition from Reporter’s collective is considered as based on false premises meant to mislead the Court. It should ideally be rejected with a penalty.
We would have appreciated if the Reporter’s Collecive had restricted itself to express its concerns and seem specific remedies rather than asking for scrapping of the entire Act. This demand betrays that the petitioners have come with a pre-conceived conspiracy to get the act scrapped and prevent the Indian public rom getting whatever benefits they would have expeted from the “Right to Protect Personal Data” which the Act tries to provide.
We have our prescriptions on how the act and the rules may be inerpreted to the effect that none of the concerns expressed can be considered as not addressable with a suitable interpretation.
Naavi
The Reporter’s Collective petition goes much beyond the “Dilution of RTI”, “No exemption for Journalistic work”, “Exemption to Government for enabling mass surveillance” and attacks Section 36 as an instrument of violation of the “Right to Freedom of Press”. This is an interesting but malicious argument meant to fool the Supreme Court which the Court should identify and penalize.
Section 36 of DPDPA is an innocuous single line section which states
36: Power to call for information.: The Central Government may, for the purposes of this Act, require the Board and any Data Fiduciary or intermediary to furnish such information as it may call for.
The Reporter’s collective has demonized this section through several pages of argument as an important ground to declare the Act as violative of the constituional right of the “Freedom of speech and expression of the journalist’s Private sources, whistle blowers and informants to the potential for compromise of their personal identity and personal data.”
Let us deeply analyse this contention that “Government being empowered to seek information from Data Fiduciaries” is curbing the sources of information of an investigative journalist and therefore violative of the “Freedom of Press”.
The contention must be appreciated for its ingenuity and linking the unlinkable. This is the creative mind of the PIL advocate at its best.
The arguments draw a parellel between “Extracting information by planting a Pegasus software without the knowledge of a potential informant of a journalist” in the Manohar Lal Sharma vs Unionof India case, to the Government seeking information from a regulated entity. Again the Section 36 can be used only “For the purposes of the Act”. The purpose of the act as described in the Preamble and through the sections donot include digging of information of an investigative journalist.
Let us recall the preamble once again….DPDPA 2023 is an act to provide for the processing of digital personal data in a manner that recognises both
a) the right of individuals to protect their personal data and
b) the need to process such personal data for lawful purposes and
c) for matters connected therewith or incidental thereto.
Hence Section 36 does not give any powers to the Government as claimed in the petition ..
i) which can reveal significant information about any person.
ii) which can be used to identifyotherwise anonymous metadata obtained by various means,
iii) which can also be used to identify anonymous online content obtained by various means.
iv) Can identify and reveal reveal intimate details about an individual’s life
religious affiliations, political beliefs, sexual orientations, health concerns, or personal relationships.
v) lacks any oversight or accountability mechanism that independently authorizes the request for information from the Central Government. (petitioners forget that under Rule 23, different officers of the Government are specifically empowered and are accountable for seeking such information)
vi) empowers the Central Government to call for a broad category of information pertaining to information which is likely to “prejudicially affect the sovereignty and integrity of India or security of the State”, without sufficient procedural safeguards.
These contentions of the petitioner are not substantiated by any part of the law as proposed and are only an imagination of the petitioners. Thet are plain falsehood meant to mislead and cheat the Supreme Court.
The petitioner’s seem to think that for every administrative decision to be taken by the DPB or the Authorized official of the Government on the Data Fiduciary, an independent Court order is required. This is a suggestion to reduce the Supreme Court to the level of the Secretary of the MeitY.
The petitioner thinks that Under section 36, Government will be seeking information about an individual without consent. This is a known false statement since Section 36 is about seeking information about Governance, Financial, Administrative and other information from the Data Fiduciary and not seeking information from an individual or about an individual. If incidentally the Data Fiduciary needs to reveal any personal information of a data principal, then the data fiduciary is responsible for the use of legitimate basis for the disclosure or resist it in a Court of law.
The petitioner is childish and contends that the individual whose information may be revealed for national security reasons should be informed before hand that their information is being collected by the Government. It is utter foolishness to expect this and it appears that the petioners are already preparing to represent the criminals whose information may be potentially revealed during a criminal investigation.
The petioners of the Reporter’s Collective petition have proven beyond doubt that they have intentions of preventing whatever benefits this law may give to the society and exhibit a mindset to assist criminals through their “Own concept of Privacy as a tool to hide crimes”. In this perspective, they may consider DPDPA as a hindrance.
But we the real public of India donot agree with their views and donot consider them as representing the public of India.
Supreme Court should not only recognize these ulterior designs and reject the petition but penalize the petitioners with a substantial fine.
Naavi
When multiple celebrity lawyers argue before the Supreme Court that DPDPA is unconstituional and should be scrapped and quote multiple Supreme Court judgements of the past and the Indian Constitution, it cannot be taken lightly.
In the past cases such as Shreya Singhal case, or the Bitcoin case, decisions have been carried through on wrong premises since the petitioners were aggressive in their argument and the Government was not able to defend its own laws. (Refer here on Shreya Singhal fiasco).
Now the “Scrap DPDPA Brigade” is claiming that DPDPA 2023 is unconsituional due to a variety of reasons including dilution of RTI Act, Unfettered surveillance powers to Government, High penalty etc.
In the first hearing, the case Supreme Court refused to grant Stay but fixed a new date for hearing.
Is there any guarantee that the Supreme Court will not grant a stay next time? Or
Is there any guarantee that the Supreme Court will not scrap DPDPA?
There is no such guarantee. It all depends on the force of the arguments.
But all professionals who want the benefits of the Act such as position as DPOs, Business as Data Auditors are silently wantching the fun. Even when prompted with a request to sign a petition, most ignore it since they consider themselves to be too elite to participate in such activities.
It is a tragedy with which India has to live with. But Naavi will continue this crusade even if only handful of people are behind…
Look at the following riduculous claim made in the petition.
“.. even though the DPDP Act has created a provision under Section 17(5) for exempting certain “data fiduciaries or class of data fiduciaries” from the provisions of the DPDP Act within five years from the date of commencement of the statute, the Central Government does not have the power to exempt obligations of data fiduciaries in respect of a specific purpose, such as for public purposes, including for journalistic purposes.“
It is difficult to understand how this can be considered as a valid ground as presented in the petition to demand scrapping of the Act.
But if learned counsels can put such grounds in the written affidavits, it means that they are confident of convincing the Court on such grounds.
In another place the petition says that
Section 36 of the DPDP Act states that the Central Government may require the Data Protection Board, any data fiduciary, or intermediary to provide information that it may call for…
The purposes for which such information may be called for (Rule 23) are
a) Use, by the State or any of its instrumentalities, of personal data of a Data Principal in the interest of sovereignty and integrity of India or security of the State
b) Use, by the State or any of its instrumentalities, of personal data of a Data Principal for the following purposes, namely: —(i) performance of any function under any law for the time being in force in India; or
(ii) disclosure of any information for fulfilling any obligation under any law for the time being in force in India
c) Carrying out assessment for notifying any Data Fiduciary or class of Data Fiduciaries as Significant Data Fiduciary.
The petition says that this facilitates unreasonable digital searches of personal data available with every data fiduciary or intermediary, contrary to Article 21 of the Constitution of India. It continues to state The purposes for which the Central Government may call for information are overbroad and vague, giving rise to the potential for abuse.
Under what figment of imagination do they think that the Government should not even ask a Data Fiduciary any information about the entity or its activities?
The petition says that BECAUSE Section 36 of the DPDP Act read with Rule 23 of the DPDP Rules empowers the Central Government to call for information in the “interest of
sovereignty and integrity of India or security of the State”,a phrase that is both overbroad and vague, and is for that reason alone unconstitutional.
This phrase is from the Article 19(2) of the constitution and is found in many laws including ITA 2000 and BNS.
But the petitioners consider these as sufficient grounds for scrapping the law passed by the Parliament.
It is surprising that the advocates who are the “Officers of the Court” are trying to mislead the Court with speculative possibilities which they only can imagine.
Looking at some of these grounds presented, it appears that the petitioners are either naive themselves or consider that the Judges can be made to toe their line whether it is logical or otherwise.
Even admission of this petition should be rejected and the petitioners should be asked to come back with a better petition.
Hope Supreme Court under the current CJI is different from the earlier Courts which could be swayed by the celebrity advocates.
Let us wait and watch.
Naavi
